Legal Commentary

Oral Argument in United States v. Comstock

By Orin Kerr

This morning I went to the oral argument at the Supreme Court for United States v. Comstock, a potentially important federalism case that we?ve blogged about here before. The issue in the case is whether Congress has the Article I power to set up a system of civil commitment for sex offenders after their federal prison terms are over. The argument transcript is now up here.

Just based on my recollections of the argument, I thought SG Kagan made a much broader Article I power argument at oral argument than was made in the Government?s brief. Indeed, her argument struck me as sort of shockingly broad: She argued that the Constitution gives the federal government the general power ?to run a responsible criminal justice system,? and that anything Congress plausibly thought a part of running a ?responsible criminal justice system? was within the scope of federal power. Justice Scalia would have none of it, as you might imagine, but I couldn?t tell if he had any other votes.

My guess from the argument is that the Court will uphold the statute on the narrower grounds offered by the Government?s brief. If I had to make a more specific guess on a vote and opinion assignments, I would guess that it ends up being 7?2, with Scalia and Thomas dissenting. And I?ll go out on a limb and say Chief Justice Roberts will assign the majority opinion to Alito or Kennedy. But these are obviously just guesses, which I?ll remind you of if I get it right but forget if I get it wrong.

Full post as published by The Volokh Conspiracy on January 12, 2010 (boomark / email).